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Prosecutors Thwart Effective Criminal Defense Under “Touhy”

Angela Haynes, RWA, EDPA

Federal prosecutors routinely seek to thwart defense counsel’s access to vital information possessed by other government employees by invoking “Touhy.” What is “Touhy?” At the dawn of this nation’s tripartite government, Congress created a “housekeeping” statute, now codified at 5 U.S.C. § 301, to allow for the effective delegation of authority and efficient maintenance of the newly-centralized government. While not the original intent of Congress, government department heads have interpreted this statute to create a confidentiality privilege. See William Bradley Russell Jr., A Convenient Blanket of Secrecy: The Oft-Cited But Nonexistent Housekeeping Privilege, 14 Wm. & Mary Bill Rts. J. 745 (2005). Pursuant to this federal housekeeping statute, each federal agency head has the authority to promulgate regulations for the governance of their respective departments and the maintenance of the departments’ records and property. The United States Attorney’s Office adheres to the general regulations promulgated by the Department of Justice. See 28 C.F.R. §§ 16.21-16.29. In proceedings in which the government is a party, § 16.26 provides the list of factors that an individual seeking disclosure of documents or testimony must satisfy in order to warrant the disclosure requested. If testimony from an employee of the Justice Department is sought, § 16.23 further requires the requestor to provide a written formal summary of the testimony sought.

MONTHLY NEWSLETTER FOR CJA PANEL ATTORNEYS

LEIGH M. SKIPPER, CHIEF FEDERAL DEFENDER

DECEMBER 2015

In November, the Court approved new members to the CJA Panel for the Eastern District of Pennsylvania. We send a warm welcome to our newest CJA Panel attorneys. The Federal Defender Office will host an Orientation Program for new Panel members, on a date to be determined. We also will offer new CJA attorneys the opportunity to be matched with a mentor through our Voluntary Mentor Project. If you would like to serve as a mentor to a new CJA member, please email Nina Spizer, Chief, Trial Unit, at Nina_C_Spizer@fd.org.

Federal Community Defender Office for the Eastern District of PA

Helen Marino, First Assistant Federal Defender Nina Carpiniello Spizer, Chief, Trial Unit

Elizabeth Toplin, Assistant Chief, Trial Unit Brett Sweitzer, Chief of Appeals

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Editors

Jennifer Nimmons Herman Attorney Advisor

▬ Kimberly Campoli

Paralegal/Panel Administrator

INSIDE THIS ISSUE Prosecutors Thwart Effective Criminal Defense Under “Touhy” Page 1 Recent Third Circuit and Supreme Court Cases Page 5

Welcome New CJA Panel Members

In 1951, the U.S. Supreme Court was asked to determine the propriety of an agency’s regulations promulgated pursuant to the federal housekeeping statute, and an agency employee’s adherence thereto during the course of a court proceeding. In United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), Petitioner was a state inmate who filed a federal habeas petition to challenge his conviction. In order to open evidence to support his petition, Petitioner served a subpoena duces tecum upon a supervisory agent of the Federal Bureau of Investigation. Specifically, Petitioner sought FBI records which he believed would show that his conviction resulted from fraud. The supervisory FBI agent refused to disclose the requested documents, and also refused to testify in court. The lower court held the supervisory FBI agent in contempt. The Seventh Circuit reversed the lower court’s contempt order, finding that the supervisory FBI agent properly observed Department of Justice regulations regarding such disclosure. The Supreme Court upheld the Seventh Circuit, reasoning that:

When one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious.

Touhy, 340 U.S. at 468. In the aftermath of Touhy, federal agencies enacted or amended their internal housekeeping regulations, which are now known colloquially as “Touhy Regulations.” Congress amended the federal housekeeping statute itself in order to clarify its scope. Clearly, the Touhy ruling addressed disclosure in civil matters in which the government was not a party. See Touhy, 340 U.S. at 470-73 (Frankfurter, concurring). Nonetheless, the government routinely raises challenges pursuant to Touhy in criminal cases, and courts routinely side with the government. The Supreme Court itself recognized that such application was not appropriate in criminal matters. In Touhy, the Court acknowledged that the issues presented did not involve, inter alia, “the effect of a refusal to produce in a prosecution by the United States.” See Touhy, 340 U.S. at 467 n.6 (citing United States v. Andolschek et al., 142 F.2d 503 (2nd Cir. 1944)). In Andolschek, Defendants were inspectors from the Alcohol Tax Unit accused of taking bribes. The lower court excluded several reports filed by Defendants, citing Treasury Department regulations promulgated pursuant to the federal housekeeping statute. Defendants were convicted. The Second Circuit reversed the convictions, reasoning, in relevant part that, while a government agency may refuse to disclose documents in controversies between third persons,

we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose

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DECEMBER 2015

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Eastern District of PA

Please contact Jeff Lindy with any CJA issues,

comments, or concerns: Lindy & Tauber

1221 Locust Street Third Floor

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jlindy@LindyLawFirm.com

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criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter.

Andolschek, 142 F.2d at 506. The Supreme Court subsequently cited Andolschek in United States v. Reynolds, 345 U.S. 1 (1953), where the Court sought to differentiate the case – a claim brought under the Federal Tort Claims Act – from a criminal prosecution:

The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented.

Reynolds, 345 U.S. at 12; see also United States v. Valenzuela–Bernal, 458 U.S. 858, 881–82 (1982); Jencks v. United States, 353 U.S. 657 672 (1957). Unfortunately, courts addressing the issue of the applicability of Touhy Regulations in criminal matters have overwhelmingly ruled in favor of the government. The Fourth Circuit has reasoned that § 16.23(c) expressly provides for such application, and the regulations do not expressly limit their application to non-criminal cases. See United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007) (illegal re-entry). The Fifth Circuit has gone so far as to rule that compliance with the Touhy regulations is mandatory. See United States v. Wallace, 32 F.3d 921, 929 (5th Cir. 1994); see also, United States v. Vander Luitgaren, No. 6:07-cr-211-Orl-22DAB, 2008 WL 2610465 at *2 (M.D. Fla. June 30, 2008).

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Courts addressing this issue also have ruled that application of Touhy Regulations does not necessarily violate a defendant’s right to compulsory process, see Soriano-Jarquin, 492 F.3d 503-04; Milton Hirsch, “The Voice of Adjuration”: The Sixth Amendment Right to Compulsory Process Fifty Years After United States ex rel. Touhy v. Ragen, 30 Fla. St. U. L. Rev. 81 (2002), nor the rule governing reciprocal discovery, see United States v. Rosen, 518 F.Supp.2d 798 (E.D. Va. 2007). Nonetheless, these remain viable, legitimate arguments against the application of Touhy Regulations in a criminal matter. The courts within the Third Circuit have applied Touhy in criminal matters without providing analysis regarding Touhy’s applicability. See United States v. Baker, 496 Fed. App’x 201, 204 (3d Cir. Sept. 17, 2012) (bank robbery); United States v. Werme, Crim. Nos. 8900132-01, 8900132-02, 1989 WL 119669 n.1, at*2 (E.D. Pa. Oct. 10, 1989) (Hutton, J.) (conspiracy). It appears that there is no binding authority in the Third Circuit regarding the applicability of Touhy in criminal cases. Bottom line: it appears that the courts are applying Touhy Regulations in criminal proceedings as a matter of course. Therefore, be sure to identify – as far in advance as possible – your need to access government employees or government documents, requiring submission of a request pursuant to the Touhy Regulations. Such a need would be evident if the government employee is the only source of the information sought, and the information sought is relevant and material to your defense. Practically speaking, you should file a formal written “Touhy request” for documents in the possession of government employees as well as their testimony. Be sure to specifically address each of the requisite factors provided in the agency’s Touhy Regulations that govern disclosure. Consider also filing a subpoena with the formal written Touhy request. If the government agency rejects the formal written Touhy request, you would then have grounds to file a motion to compel. If a subpoena was not filed, you may challenge the denial under the Administrative Procedures Act (5 U.S.C. § 706) as an “arbitrary and capricious” action by the agency. Also, as there is apparently no binding authority within the Third Circuit regarding the applicability of Touhy in criminal cases, consider litigating the issue if the circumstances warrant it. Elizabeth Carroll, a Research and Writing Attorney with the Federal Public Defender’s Office for the Western District of Texas, has produced an informative primer on this subject. See How to Subpoena a Government Witness: Compliance With Touhy Regulations for ICE, CBP, DEA and FBI, available at: https://txw.fd.org/sites/default/files/Elizabeths%20How%20to%20Subpoena%20a%20Govt%20Agent.2011.pdf

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Recent Third Circuit and Supreme Court Cases Christofer Bates, RWA, EDPA

Supreme Court

Cert. Granted – Misdemeanor Crime of Domestic Violence with Reckless Mens Rea Voisine v. United States, No. 14-10154 (Cert. Granted Oct. 30, 2015). ISSUE: Does a misdemeanor crime with the mens rea of recklessness qualify as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

Cert. Granted – SORNA’s Registration Requirements for Those Who Move Abroad Nichols v. United States, No. 15-5238 (Cert. Granted Nov. 6, 2015). ISSUE: Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided?

Happy Holidays from the Federal Community Defender Office for the

Eastern District of Pennsylvania. We wish you peace and joy in 2016!

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DECEMBER 2015

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